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Trump's use of executive privilege will test congressional power to enforce subpoenas

Congress could try to convince the Justice Department to file criminal charges against those who ignore its demands.

WASHINGTON — The House committee investigating the Jan. 6 riot at the U.S. Capitol is exploring ways to enforce its subpoenas after former President Donald Trump asserted executive privilege, an attempt to keep documents from his time in office from being turned over.

But under current law, lawmakers have few options. The committee's best hope may be a change of heart at the Justice Department on whether to prosecute those who refuse to cooperate.

The committee is seeking records from the Trump White House and testimony from former administration officials. Trump notified the National Archives, which maintains the documents, that he formally asserts executive privilege.

President Joe Biden, however, concluded that the privilege should not apply. The White House counsel, Dana Remus, said the documents "shed light on events within the White House on and about Jan. 6 and bear on the Select Committee's need to understand the facts underlying the most serious attack on the operations of the Federal government since the Civil War."

Trump's next move would be to sue the National Archives, hoping to prevent the documents from being turned over. However, the courts have never clarified the exact nature of a former president's ability to assert executive privilege. Trump clearly has some ability to assert it, but his claim is weakened by Biden's refusal to recognize it.

The Supreme Court said in a 1977 case, involving a lawsuit against the National Archives brought by former President Richard Nixon, that the current occupant of the White House "is in the best position to assess the present and future needs of the executive branch."

Trump has also notified former officials of his administration that he intends to make the same privilege claim regarding their potential testimony before the committee. If they defy the subpoenas and refuse to appear, the House could vote to hold them in contempt of Congress.

Under a law passed in 1857, Congress has the authority to refer a contempt vote to the U.S. attorney's office in Washington for prosecution. However, no criminal charges have ever been filed when an assertion of executive privilege is involved, according to legal scholars.

The Justice Department has long taken the position that it has the discretion to determine whether to prosecute. And since at least 1984, it has determined that the criminal contempt of Congress law cannot constitutionally be applied to a presidential claim of executive privilege.

"If the Justice Department wanted to pick someone not cooperating with the Jan. 6 investigation as a test case for a contempt of Congress prosecution, I could think of worse test cases," said Steve Vladeck, an expert on federal court procedure at the University of Texas at Austin School of Law.

The committee has two other options. One is what's known as the inherent contempt power of Congress. The courts have long established that either house of Congress has the power to round up reluctant witnesses and, if necessary, throw them into holding cells until they agree to talk. But that authority hasn't been used in nearly a century, and there's no longer any congressional jail.

Nor has anyone ever been fined for refusing a congressional demand, by subpoena, to appear before a committee or to provide documents for an investigation. But the fact that some in Congress are considering it as an option is a sign of the frustration over existing methods, which are ineffective for compelling administration officials to appear or produce documents. Whether Congress has the authority to do so is an open question.

In an 1881 case, the Supreme Court suggested that the power to punish for contempt might include "fine or imprisonment." But it was a comment made in passing. If the House tried to impose a fine, it would undoubtedly lead to a court fight.

Congress can also go to court on its own and sue a reluctant witness, urging federal judges to referee the dispute and force the two sides to come to an accommodation on producing evidence. It works, but it is profoundly slow. The House eventually got some of the documents it sought for its investigation of the Bureau of Alcohol, Tobacco, Firearms and Explosives' botched gun-tracing operation known as Fast and Furious after finding then-Attorney General Eric Holder in contempt and suing him in federal court in 2012.

It took more than six years to fully litigate the case.

Courts often move slowly when called upon to settle disputes between the other two branches of government. Two years ago, the House Oversight Committee sued then-Attorney General William Barr and then-Commerce Secretary Wilbur Ross over documents related to putting a citizenship question on the census form.

That case is still in court.